It's not that as a matter of historic fact he did not abduct and murder Etan Patz. Maybe he did. Maybe he didn't. I don't know. You don't know. Adam Sirois doesn't know. Neither do the other 11 jurors.

I've said this before, but it bears repeating. Trials are not about truth. They're not about what happened. They're about proving things - elements of crimes we call them - to the satisfaction of 12 jurors. Beyond a reasonable doubt. Whatever that might be.

The prosecutors proved what they had to, proved to 11 jurors, those elements. From which they, the 11, said Pedro Hernandez was guilty. Adam Sirois wasn't convinced. He didn't believe it beyond a reasonable doubt. Whatever that might be.

And so Pedro Hernandez is innocent. Wholly, completely, totally innocent.

Even if he did it.

Which maybe he did. And maybe he didn't.That, my friends, is the American Way.

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* * * * *

It is, of course, also The American Way™ that even though the Constitution guarantees that nobody can be tried twice for the same crime, prosecutors plan to try Pedro Hernandez again for the same crime. And the Supreme Court says that's just fine. Being tried twice for the same crime, you see, is just fine as long as it isn't being tried twice for the same crime.

I also don't believe that a guilty verdict will end the trauma of a rape.

More to the point, trials aren't about making victims feel better. They're about whether the State proves beyond a reasonable doubt that so and so did such and such. Sometimes, probably most of the time although nobody really knows, when a jury says that the state did prove it, the now-guilty person in fact did whatever. That's the hope and faith of the system. The fear of convicting the person who didn't do it is at the heart of the reasonable doubt standard. That's central to the long history in Western religion, philosophy, and law of saying that it's better that some substantial number of factually guilty people go free than that even one factually innocent person gets convicted.

Regardless of how you view any of that, our system says that unless and until a jury finds beyond a reasonable doubt that each and every element of a charged crime has been proved beyond a reasonable doubt, the accused is innocent. You don't have to like that system, but it's the one we have.

Alternatively, I believe you think that prosecutions are about the crime committed against a person. They are not. They are about crimes committed against society. Often crimes committed against society occur in the form of a crime directed at a person, but it is the harm to society that gives society, in the form of the government, the duty to prosecute. For crimes committed against a person, there are civil charges. This is also why whether the victim "wants to press charges" is irrelevant to whether the government can prosecute.

I get that it's personal. But the crime, as a crime, is against the state. That's why criminal cases are captioned things like State v. Jones or US v. Smith. And why indictments say things like "against the peace and dignity of the state." Individuals get to bring civil actions. There are historic reasons the law developed that way, but that's how it works. It's something every first-year law student learns.

No, he's innocent. Unless and until a unanimous jury finds him guilty.

Because the courts have said that double jeopardy does not mean what the words of the double jeopardy clause obviously mean (Rehnquist wrote that double jeopardy law it has its own logic [something different from actual logic though he didn't say that part]), that may still happen, but mistrial or not, he remains innocent for now.

He may or may not (one more time) have actually done the things of which he's accused, which might make him factually guilty, but he is legally innocent.

He is legally innocent. You don't like that, don't want to think it matters, fine. That's your right. It's also the law.

Is he morally innocent? I don't know. Did he in fact abduct and kill Etan Patz? I don't know. Neither do you. Will he ultimately be convicted of the crime - at which point, but only at that point, he will be legally guilty? Maybe.

That legal innocence (or legal guilty, by the way) may not match up with historic fact does not change the legal categories. But there are consequences to legal guilt that occur only when and if a jury unanimously concludes that the government has proved beyond a reasonable doubt all the elements of the crime. Unless and until a jury should so conclude that happens Pedro Hernandez is legally innocent.

Wholly and completely and totally legally innocent. Whether he did it or not. Whether he's a saint or a monster. Those things have nothing to do with each other except that we hope they coincide.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.